You know, there’s been so much talk about our Hobby Lobby case against the HHS Mandate, that I wanted to make sure you hadn’t forgotten about the other challenges – the ones brought by religiously affiliated non-profits.

While the government has pretty adamantly and consistently said that religious business owners give up their religious liberty when they try to earn a living, this administration has also tried to sound more accommodating when it comes to not-for-profits, like religious hospitals and universities.

Notice I said that they are trying to “sound more accommodating.” The truth is that every step they’ve taken to supposedly accommodate religious liberty under the HHS Mandate has been little more than a tactical maneuver to delay court consideration of the rule.

As you’ll recall, each time cases like our Wheaton College or EWTN or Belmont Abbey College challenges came before a court, the judges would say they couldn’t decide the merits because the government said it wouldn’t enforce the rule yet or the government said it would change the rule somehow. Over and over again, these clients and others like them were denied the opportunity to make their case because of the government’s strategy of delay, delay, delay.

But, though our other cases haven’t been in the spotlight lately, we haven’t given up on them – not by a longshot! In fact, we have just re-filed our challenge on behalf of Colorado Christian University (CCU), and we expect to be re-filing on behalf of other clients soon.

Our renewed CCU challenge came just weeks after the government finalized its new HHS Mandate, which is, in fact, just a rehashed version of the old one. It still does nothing to address religious liberty. As the Chicago Tribune said of this new and unimproved rule:

“It’s all an attempt to conceal the blatant reality that religiously affiliated employers will be implicated, financially and otherwise, in the provision of something they find morally objectionable. It’s another fig leaf and, again, it’s not convincing.”

As the editorial board for the Tribune continued, “The ‘accommodation’ is not a true accommodation; it’s merely a convenient fiction.” You can read the whole editorial by clicking here – and I highly recommend you do read the whole thing.

I’ve also pasted the whole text of the editorial below. I’m not sure we could have said it any better. CCU is the very first of the religious non-profits to re-file against the HHS Mandate, so this renewed court battle is just beginning.

P.S. Here’s that Chicago Tribune editorial. They do not mince words and call the government’s spade a spade, as they should:

Chicago Tribune

Editorial

February 3, 2013

Religious freedom and contraception

The Obama administration offers a ‘compromise’ that would compromise the First Amendment

Americans of different faiths differ on the morality of contraceptives. The Roman Catholic Church rejects their use, and most other Christian denominations accept it. Thanks to the First Amendment’s guarantee of the right of free exercise of religion, each group gets to follow its conscience without penalty. That’s what religious liberty guarantees.

The Obama administration agrees that this sort of choice should be protected not only for individuals but for churches. Under the rules it has drafted for the implementation of its health care reform, employers would have to offer employees health insurance that includes coverage for contraceptives, including some that critics regard as abortifacients. But in the spirit of the First Amendment, churches and religious orders are exempt.

As it happens, though, these are not the only faith-based organizations. Many universities and hospitals, for instance, are affiliated with the Catholic Church or other churches. And the administration has decided not to grant them an exemption from the contraceptive mandate.

When it first announced that decision more than a year ago, the administration provoked a wave of criticism. So it drafted what it labeled a compromise: Religiously affiliated organizations (those universities, hospitals and many others) wouldn’t have to provide or pay for contraceptive coverage — their insurers would bear the responsibility and cost of it.

That compromise didn’t satisfy Catholic bishops and a lot of other people who value the freedom to live according to religious principles, because it smacked of a shell game: Institutions’ premium dollars essentially would be laundered through their insurers to provide the very coverage the institutions oppose. As President Barack Obama tellingly put it last Feb. 10, “no religious institution will have to provide these services directly.” They and their dollars would, instead, provide these services indirectly. But provide they would.

Obama’s latest so-called compromise, floated Friday, also isn’t likely to pass muster with defenders of the First Amendment: The Department of Health and Human Services has agreed to treat religiously affiliated employers differently from secular ones. But it would nonetheless guarantee such coverage to their workers. The company from which they purchase insurance would have to provide coverage — this time via individual policies separate from the institution’s policy — and still, supposedly, at the insurer’s own expense. In the case of a self-insured institution, the company administering its plan would bear that responsibility.

It’s all an attempt to conceal the blatant reality that religiously affiliated employers will be implicated, financially and otherwise, in the provision of something they find morally objectionable. It’s another fig leaf and, again, it’s not convincing.

The Becket Fund for Religious Liberty says the “proposed rule does nothing to protect the religious freedom of millions of Americans.” University of Virginia law professor Douglas Laycock tells us that any insurance company offering a policy to a Catholic university or hospital knows it will have to cover the cost of providing contraceptives to employees. The premiums it charges will reflect that cost.

Indirectly, the employer still would be arranging and underwriting something that violates its fundamental religious doctrines. The “accommodation” is not a true accommodation; it’s merely a convenient fiction.

There is a better option: Let faith-based employers as well as churches opt out entirely. In this sort of matter, no religious person or institution should be forced to put aside its doctrines at the behest of the government.

That’s precisely the sort of thing the First Amendment was written to prevent. It is a vital mandate that the Obama administration should respect — but, with every so-called compromise on this issue, stubbornly flouts.

Dear Friends,I’ve got another must-read for you today!On Monday, August 11th, the editorial board of USA Today published an editorial endorsing the HHS Mandate. In their words:

“If you choose to run a secular moneymaker, you can’t claim exemptions unavailable to other businesses…. The circumstance [of facilitating a practice that violates your conscience] might be discomforting. But, the alternative – granting religious exemptions to private organizations – is more troubling.”

Thankfully, USA Today asked the Becket Fund to provide the opposing view and published it alongside its own editorial view.

In our rebuttal, Senior Counsel Mark Rienzi boils the question down to its clearest point:

“The question is not about corporations. We know corporations can exercise religion because houses of worship and all other religious organizations are corporations. The Supreme Court has repeatedly protected religious liberty for corporations. The question is really about money, and whether the government can force groups that earn money to singled-mindedly pursue profits, without regard for any other value.”

That really is what Hobby Lobby’s owners and other religious business owners are seeking, isn’t it? The right to maintain their religious values even while they pursue their livelihood.

And, please forward this email to all your friends and family – even the ones that you don’t think feel as passionately as you do about religious liberty. We think that everyone should read both sides of this debate because we’re confident in the power of our arguments. As Mark put it, “Does anyone really want a society filled with organizations that can only focus on profits and are barred from thinking of the greater good?” Who could disagree with that?

Sincerely,

Kristina Arriaga

Executive Director

Religious freedom applies to businesses: Opposing view

Don’t force owners to violate their conscience.

Can you make money and be religious? The Obama administration and a few courts have said no — at least in the context of forcing business owners to violate their religion by purchasing abortion-inducing drugs for their employees. Thankfully, most courts have rejected this view, leaving individuals and their businesses free to go to work without checking their conscience at the door.

The question is not about corporations. We know corporations can exercise religion because houses of worship and other religious organizations are corporations. The Supreme Court has repeatedly protected religious liberty for corporations. The question is really about money, and whether the government can force groups that earn money to single-mindedly pursue profits, without regard for any other value.

We regularly encounter businesses making decisions of conscience. Chipotle recently decided not to sponsor a Boy Scout event because the company disagreed with the Scouts’ policy on openly gay scoutmasters. It was “the right thing to do,” Chipotle said.

Starbucks has ethical standards for the coffee beans it buys. Vegan stores refuse to sell animal products because they believe doing so is immoral. Some businesses refuse to invest in sweatshops or pornography companies or polluters.

You can agree or disagree with the decisions of these businesses, but they are manifestly acts of conscience, both for the companies and the people who operate them. Our society is better because people and organizations remain free to have other values while earning a living. Does anyone really want a society filled with organizations that can only focus on profits and are barred from thinking of the greater good?

For many, their conscience is informed by religious views about activities they can or cannot participate in. Some Jewish store owners cannot sell leavened bread at certain times of the year. Some Muslim truck drivers cannot transport alcohol. Some Catholic prison workers cannot participate in executions.

If religious freedom means anything, it means that these people — just like Chipotle, Starbucks and everyone else in our society — are allowed to earn a living and run a business according to their values. In a tolerant society, we should just accept that our neighbors will have different beliefs, and that government-enforced conformity is rarely the best answer to this diversity.

Mark Rienzi is senior counsel at the Becket Fund for Religious Liberty, which is representing companies challenging the health law’s contraception mandate.

Dear Friends,You have to read the Becket Fund’s latest amicus brief to the Supreme Court.

While our lawyers’ briefs are always excellently crafted and brilliantly written, I don’t always recommend that everyone read every one of them. For those of us who are not lawyers, the cliff notes version can often suffice.

The U.S. Supreme Court will hear arguments in this case about legislative prayer this fall.

Supreme Court precedent is pretty clear that legislative prayer – a practice that traces its roots to the Continental Congress in 1774, by the way – is constitutional.

So, groups that want to put an end to this American tradition have been trying a new tactic. They’re saying that legislative prayer must be stripped of any religious references. And, lower courts just aren’t sure what to do with these cases so they’re coming up with contradictory opinions.

We are hopeful that with this case, once and for all, the Court will not only put to rest any lingering questions about the constitutionality of legislative prayer, but also bring some clarity to a whole range of religious liberty cases brought under the Establishment Clause of the Constitution.

You see, the Supreme Court has set up the judicial standards for judging matters under the Second Amendment (right to bear arms), Fourth Amendment (right to be free from unreasonable search and seizure), Sixth Amendment (rights of the accused in a criminal proceeding), and Fourteenth Amendment (applying rights to individuals under the states). And, each time, the Court has used a historical context test; that is: What was the meaning at the time of the founding?

But, for Establishment Clause cases, the Court has laid out a test that feels a lot more like psychoanalysis than judging. In a line of cases starting with the 1971 case known as Lemon v. Kurtzman, the Court established “the endorsement test.” And, under that standard, endorsement of religion is in the eye of the “ordinary, reasonable” beholder.

Pretty vague, isn’t it? Lower courts have thought so for decades, struggling to determine if the ‘ordinary, reasonable” beholder would see the government’s actions “as endorsing a particular faith or creed over others.”

And, that probably explains why there is a current split amongst appellate level courts on the issue of legislative prayer. The Supreme Court hates it when the lower courts disagree like that, so it typically takes cases like this one to set a standard that can guide their decisions more uniformly.

So, back to our brief in Town of Greece v. Galloway. We set out very clearly what the Founders considered an establishment of religion in violation of the Constitution. And, they understood it to be impermissible under four circumstances:

1) Government is directly funding the church.

2) Government controls the doctrine and personnel of the church.

3) Government coerces individual religious beliefs and practices.

4) Government assigns government functions (like collecting taxes) to church authorities.

That’s it. If it didn’t fall into one of those categories, then it wasn’t government-established religion and it was permissible under the Constitution.

Legislative prayer clearly fails to fit into any of those categories and was routine at the time of the founding.